Navajo Nation closes in on water rights settlement

It appears that the Navajo Nation, the federal Bureau of Reclamation, and the State of Utah are closing in on a settlement over the Utah Navajo’s water rights to the San Juan River. While the settlement must still be approved by Congress, the aforementioned parties are all in agreement on a settlement they say is both fair and likely to calm uncertainty as it relates to the San Juan River, which is a major tributary of the Colorado River that covers some 383 miles in the Four Corners area. If approved, the Navajo Nation settlement will resolve one of the largest outstanding water rights claims in Utah.

Navajo Nation’s Water Rights Have Been Hard to Quantify Historically

The Navajo Nation was originally established via a treaty in 1868, which was long before many of the current users began drawing water from the region’s rivers. By law, the Navajo Nation theoretically holds senior water rights to most competing uses, according to the “first in time, first in right” principle. But for the Navajo Nation, as with many tribes, quantifying those rights has meant decades-long trudges through political negotiations and, sometimes, litigation.

The Navajo Nation Approves Settlement Over Water Rights, Allocating 81,500 Acre-Feet of Water Annually

In January 2016, lawmakers in the Navajo Nation approved the settlement by a vote of 13-7 without any debate. The approved settlement will give the Navajo 81,500 acre-feet of water annually, which the settlement allows the Navajo to draw from aquifers and the San Juan River and its tributaries. The Navajo could also potentially draw their share of water from Lake Powell, but the Navajo have said they have no interest to do so.

While the Utah Navajo currently use only a small portion of the 81,500 acre-feet of water that will be allocated to the tribe under the settlement, it has been reported that “the agreement will allow for economic development and leasing of water to entities off the reservation, and the tribe wouldn’t lose any water it did not put to use, according to the settlement.” Tribal President Russell Begaye has said, “We do not intend to only utilize the water for drinking or housing purposes. We would also like to see it benefit business startups, tribal offices, schools and other programs on the Navajo Nation.”

Husband and Wife Attorney Team Hired to Advise Navajo Nation Over Settlement

The Navajo Nation has hired Daniel Cordalis and his wife Amy Cordalis, both attorneys and members of the Navajo tribe, to advise the Navajo Nation as it relates to the settlement over the San Juan River. Mr. Cordalis has said, “That analysis led us to believe the settlement is fair and provides the Navajo Nation a favorable resolution of their Utah water rights claims.”

Congress to Allocate $200 Million for Navajo Nation Water Projects

In addition to the annual water allocated to the Navajo, the settlement calls for a Congressionally allocated, $200 million Utah Navajo Water Development Fund for Utah Navajo water projects. The settlement also includes a waiver of any past legal claims by the Navajo Nation against the State of Utah and the U.S. government within Utah, a provision that is standard operating procedure in Indian water settlements.

Is First in Time Really Last in Line?

A somewhat controversial part of the settlement contains an agreement by the Navajo Nation that, if there is not enough water to fill its needs, the Navajo Nation will not assert priority over pre-existing, non-Native water users. This provision of the settlement has purportedly raised some concerns in the water conservation community over the value of water rights conservationists say cannot be enforced. “It kind of tells me that the state of Utah understands that there’s no water left for the tribes,” said John Weisheit, conservation director for Living Rivers, a Utah-based water advocacy group. “They’re first in rights, but last in line for water.”

However, Mr. Cordalis has said that while water supplies from the Colorado River may be in doubt, that is not the case as it relates to the San Juan River. “The San Juan River is not burdened with downstream water rights such that those existing water rights present a significant detriment to Navajo’s 81,500 acre-feet a year (AFY) right,” he said. “In our opinion, there will be enough water in the San Juan River to achieve the full settlement value on a yearly basis.”

Grassroots Activists Feeling Left Out

Some grassroots activists have also complained that they have been left in the dark about the settlement’s terms, a concern that harkens back to 2012, when a massive outcry among Navajo activists led to the defeat of the Navajo-Hopi Little Colorado River Water Settlement Act of 2012.

“We want to be part of the decision-making, but we are not,” said Anna Frazier, a long-time activist with the Navajo grassroots group Diné CARE. Still, there has not been public opposition to the Utah San Juan settlement as there was to the Little Colorado proposal in 2012.

Indian Water Settlements Proving Costly for Federal Government

In addition to the Utah settlement, American Indian water rights settlements nationwide have cost the federal government $4.3 billion, the Interior Department has said. Congress enacted most of the 31 other settlements, while the others came about through federal agencies or court order. Four are pending in Congress for tribes in Montana, Oregon and California, according to the Interior Department.

Time Will Tell What Settlement Will Mean for Future of Navajo Nation and its Use of Water

While the Navajo settlement in Utah still needs the blessing of Congress, it appears that it may help with development and infrastructure within the tribe. “What the settlement does is provide that flexibility for tribal members to both use water now and have enough water for future development, which ultimately is most important,” Mr. Cordalis said. Similar to Mr. Cordalis, Leonard Tsosie, a Navajo Nation Council delegate, has promoted the settlement among his colleagues and constituents as a way to support existing and future Navajo communities in southeastern Utah. “We can dream all we want but if there is no water, there is no development,” he said.

Only time will tell whether the Navajo settlement will provide the necessary water the tribe needs to fulfill their visions for progress and expansion. Furthermore, demand on the Colorado and San Juan Rivers will only increase over time, which may mean that although the Navajo’s water rights are superior, they may be limited by the right of other non-Native users as set forth in the settlement. It would seem awkward that the Navajo Nation has been granted this water right, but other non-Native users may trump that right if there is not enough water to fulfill the Navajo’s allocation. In that case, first in right will be last in line.